Would You Use Experimental Treatment on the NHS?

9th June 2014

The use of experimental treatment will be made easier should a proposed Medical Innovation Bill pass into law. The Bill (also known as the Saatchi Bill as it is being promoted by Lord Saatchi) promises to encourage innovation in treatment to the benefit of patients.

In other words, rather than be constrained by normal, accepted treatments, medical professionals can use their judgment to dismiss the normal treatment pathways and opt for a less common or new form of treatment that they believe will benefit the patient more.

It is claimed that the Bill would help to speed up medical advances, by lessening the threat of legal action. Under the current rules, if doctors stray from normal practice and patients suffer harm as a result, they are more likely to have a successful medical negligence award made against them.

Yet, should the Medical Innovation Bill pass into law, it is argued, such experimentation will be made part of acceptable practice and therefore lawyers will have a harder task proving that any resulting injury stemmed from negligence. As a result, more doctors will feel free to try new approaches to speed up advances in medical science.

However, there are increasing concerns about ‘informed consent’. If patients are being offered experimental treatment that by its very nature carries increased risk, how can they realistically weigh up the pros and cons to ensure that they give consent to take on these increased chances of failure?

Also, even if the full facts are laid before them, it needs to be questioned whether a patient living in pain or with the threat of a life limiting illness, would be able to take a balanced view when trusted medical professionals are laying the option of a potential ‘miracle cure’ before them.

The thinking behind the Medical Innovation Bill assumes a high degree of skilled judgment from medical professionals, asking them to know exactly when it is right to deviate from standard practice and pick out exactly the right new treatment for a patient, as well as guide the patient through all the detailed pros and cons. Obviously, this could have potential for flaws.

The Medical Innovation Bill has now passed its consultation phase and the ‘Bill Team’ is preparing a report on how it meets the concerns expressed by medical, legal and patient groups.

It will be interesting to see how it would propose ensuring patients are fully informed about the details of treatment so that they can give true consent. Also, should things go wrong with treatment, will it still ensure that patients can use the law to reveal the truth about what happened to them, highlight professionals that fail in their duty of care and obtain damages to help fund their future treatment and care? Only time will tell.

Contact Details

Fletchers Solicitors are solicitors of England and Wales, authorised and regulated by the Solicitors Regulation Authority and the Financial Conduct Authority. The Authority's rules can be accessed via their website www.sra.org.uk Registered Office at Dukes House, 34 Hoghton St, Southport, PR9 0PU. Fletchers Solicitors is a trading name of Fletchers Solicitors Ltd. Company No. 5743784